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MADAM VAKOH CHAPMAN, ETC.
V.
MESSIEURS COMPAGNIE FRANCAISE DE L’AFRIQUE OCCIDENTALE (C.F.A.O)
THE WEST AFRICAN COURT OF APPEAL HOLDEN AT ACCRA, GOLD COAST
28TH DAY OF JUNE, 1943
2PLR/1943/50 (WACA)
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OTHER CITATION(S)
2PLR/1943/50 (WACA)
(1943) IX WACA PP. 181 – 186
LEX (1943) – WACA PP. 181 – 186
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BEFORE THEIR LORDSHIPS:
DONALD KINGDON, C.J., NIGERIA
PETRIDES, C.J., GOLD COAST
GRAHAM PAUL, C.J., SIERRA LEONE
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BETWEEN
MADAM VAKOH CHAPMAN HEIR AND SUCCESSOR ACCORDING TO NATIVE CUSTOMARY LAW OF HER SON THE LATE W. K. CHAPMAN OF KETA (DECEASED) — Plaintiff-Respondent
AND
1. MESSIEURS COMPAGNIE FRANCAISE DE L’AFRIQUE OCCIDENTALE (C.F.A.O.) — Defendants
2. J. S. ARYEE-HYDE REPRESENTING THE BIANA AND DELASHIE FAMILY ZX — Co-Defendant-Appellant
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REPRESENTATION
Addo Akufo — for the Appellant
K. A. Bossman — for the Respondent
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ISSUE(S) FROM THE CAUSE(S) OF ACTION
REAL ESTATE AND PROPERTY LAW:- Family law held under native/customary law — Authority to represent family — Duty to establish same — Failure thereto — Decision relating to land given by an improperly constituted tribunal — Validity of same as res judicata distinguished from validity of same as an existing judgment not appealed against
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PRACTICE AND PROCEDURE ISSUE(S)
EVIDENCE:- Estoppel — Res judicata — Privies — Predecessor in suit not predecessor in title
COURT:- Native Tribunal — Procedure — Judgment of Councillors who did not hear evidence — No appeal — annulment of proceedings.
ACTION:- Representative action — Defendant purporting to represent family without authority-Defendant’s representative capacity disputed
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CASE SUMMARY
Plaintiff, the heir and successor under Native Customary Law of W. K. Chapman deceased, sued the defendant Company for arrears of rent of certain premises. The co-defendant was joined as representative of a family of which, as he admitted in cross-examination, his mother, then living, was the head. He produced no authority from his mother to represent her or the family.
The co-defendant pleaded estoppel by res judicata. The land in question was marsh land acquired by W. K. Chapman in 1921 and reclaimed by him in 1925-26. The proceedings on which the co-defendant relied were started by the co-defendant in a Native Tribunal in 1930 against Chief Ocloo I. On Chief Ocloo I’s death W. K. Chapman became Chief Ocloo III and was substituted as defendant. After his death in 1933, when plaintiff succeeded to his property, Chief Ocloo III, the son of Chief Ocloo I, was substituted as defendant, and judgment was given against him in 1935. Plaintiff was never a party to the proceedings. The judgment was given by a set of Councillors all of whom had not sat to hear the evidence. Under Native Law and Custom property descends through the female line and consequently Chief Ocloo III did not succeed to the property of Chief Ocloo I or of W. K. Chapman.
The trial Judge held that the plea of res judicata failed; that the proceedings on which it was based were a nullity because all the Councillors had not heard the evidence; and that the co-defendant, having no authority to represent his family, had no locus standi before the Court.
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DECISION OF THE WEST AFRICAN COURT OF APPEAL
Held (dismissing the appeal):
1. That Ocloo III was the son of Ocloo I. As according to native law and custom property descends through the female line it follows that Ocloo III could not succeed to the properties of Ocloo I. Nor could he for the same reason succeed to the properties of W. K. Chapman alias Ocloo II.
2. Ocloo III had no interest in the property in dispute and a judgment against him cannot be relied upon by the co-defendant as binding Ocloo II or the plaintiff, his successor, according to native law and custom.
3. Since W. K. Chapman became owner of the property of the land in dispute in 1921, no judgment in respect of this land could bind the plaintiff, his heir and successor, except a judgment against W. K. Chapman or the plaintiff, his heir and successor according to native law and custom. There is no such judgment.
4. The plaintiff succeeded to the property on the death of her son. W. K. Chapman, in 1933. No judgment after that date can have any effect against her title unless she is a party to the action. The judgment against Ocloo III in 1935 cannot be regarded ‘as res judicata’ so as to estop the plaintiff from maintaining this action. The plea of res judicata therefore failed.
5. That while the proceedings on which the plea was based might have been annulled on appeal, no appeal had been brought, and therefore the judgment stood good and could not be treated as a nullity;
6. That the co-defendant had not established his right to represent the family.
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MAIN JUDGMENT
The following joint judgment was delivered:- per KINGDON, C.J., NIGERIA, PETRIDES, C.J., GOLD COAST AND GRAHAM PAUL, C.J., SIERRA LEONE
PETRIDES, C.J., GOLD COAST (DELIVERING THE JUDGMENT OF THE COURT)
These proceedings commenced in the District Magistrate’s Court, Accra, by writ of Summons against the 1st defendants only. The substance of the writ is –
“The plaintiff as heir and successor in accordance with Native Customary Law of her son the late W. K. Chapman (deceased) of Keta claims from the defendants the sum of £150 arrears of rent due for the said defendants’ occupation of premises situate by the side of the lagoon at Keta leased or demised to the said defendants by Indenture of Lease dated the 17th day of December, 1930, made between the said W. K. Chapman (deceased) and the defendants.”
Subsequently the co-defendant was made a party. Pleadings were filed. The defence of the co-defendant is as follows:-
“1. The defendant J. S. Aryee Hyde denies paragraph 2 of the plaintiff’s Statement of Claim and say that in April, 1930 the defendant J. S. Aryee Hyde instituted an action in the Tribunal of the Head Chief of Awuna State against Chief James Ocloo I in respect of several real properties in Keta including the property the rents of which is the subject-matter of this suit. That as Chief James Odoo died before judgment W. K. Chapman on succeeding to Chief James Ocloo I as Chief James Ocloo II was substituted and upon the death of Chief James Ocloo II before judgment Daniel Ocloo Nyahoe was substituted as Chief James Ocloo III and the case proceeded to judgment in my favour.
“2 That before judgment the defendants Messieurs Compagnie Francaise de L’ Afrique Occidentale entered into two (2) separate leases in respect of the same property with the plaintiff W. K. Chapman and also with myself on the understanding that whoever got judgment should be entitled to the rents accrued. Both leases were witnessed by the Head Chief of the State in whose Tribunal the dispute was then pending.
“3. The plaintiff is not entitled to recover from the defendants Messieurs Compagnie Francaise de L’ Afrique Occidentale any rents under the lease because of the judgment in my favour.
“4. That the Head Chief of the State informed the defendants Messieurs Compagnie Francaise de L’Afrique Occidentale of the result of the judgment in his Tribunal and the effect of that judgment on the lease with plaintiff’s predecessor in title.
“5. That the plaintiff’s predecessor has never claimed this property as his private or individual property.”
The suit was transferred to the Supreme Court for trial. It was there agreed that the pleadings filed in the District Magistrate’s Court should form part of the case. Both counsel asked to and did supplement the pleadings by opening statements.
The hearing was protracted. It commenced on the 4th February, 1942. Judgment was delivered on the 7th December and reasons for judgment were given on the 23rd December, 1942.
During the course of the trial it was contended that a judgment of the Native Tribunal of Anlo, dated 26th February, 1935, in J. A. Hyde (the present co-defendant) v. Chief James Ocloo III operated as res judicata and precluded the plaintiff in this case from claiming that she was the owner of the land in dispute.
On the 3rd March the learned trial Judge gave a ruling on the co-defendant’s plea of res judicata. He said “I hold that the plea of res judicata fails and I sustain the contention of Mr Bossman (plaintiff’s counsel). I will give reasons for my ruling.”
By his judgment of the 7th December the trial Judge held that the land in dispute, the subject matter of the leases of the 17th December, 1935, belonged to the late W. K. Chapman, whose successor was the plaintiff and the plaintiff was entitled to the rent claimed from the defendant company. He gave judgment accordingly and ordered the co-defendant to pay all the costs.
The reasons for judgment were as follows:-
“The reasons for my judgment may be briefly stated:-
“In the first place I was satisfied that although the boundaries of the land in dispute were confusing, I was satisfied as a fact that the store in question stands on a land belonging to plaintiff’s ancestor. In 1884 we had no competent African surveyors in the Gold Coast, but from the evidence on behalf of the plaintiff, I was thoroughly satisfied that the area in dispute belongs to plaintiff’s ancestor.
“In the second place the co-defendant did not establish his right to represent the family in this case, nor did he produce any authority from his mother, the alleged head of the family, to represent her or the family, I held therefore that the co-defendant had no locus standi before this Court.
“On the 19th March, 1942, I held that the co-defendant, as a member of the family, could call Nyavor Kuwornu who had applied to be joined, to strengthen his case. This view which l took was obviously wrong as it might imply that the co-defendant could legally appear for the family. As a matter of law, he could not represent the family without proper authority from the head of the family.
“Strictly speaking, the primary issue before this Court was contractual and my decision in no way affects the rights of the proper head of the family if he or she considers that his or her title to the land is affected, but I certainly held that the co-defendant was not the right person to appear before this Court.
“The co-defendant relied on a judgment of the Tribunal of Awunaga. I went thoroughly into that question and held that that judgment could not stand because it was a nullity. Nor did he satisfy this Court that he was the proper person to represent the family.
“I intended to give reasons for my ruling as to the plea of res judicata, but counsel on both sides told me that they did not require any reasons to be given.”
From this judgment the defendant has not appealed. The co-defendant has appealed on a number of grounds.
We shall deal first with the co-defendant’s contention in this Court that the judgment of the Anlo Tribunal of the 26th February, 1935, in J. A. Hyde v. Ocloo III operated as an estoppel per rem judicatam.
It must be recollected that the trial Judge held that the land in dispute belonged to the late W. K. Chapman and that the plaintiff is his successor. Plaintiff’s counsel in his opening stated that James Ocloo I derived title to the land in dispute and adjoining land by “Deed of Grant” of 19th November, 1887 from one Kofi Avornoo. From a perusal of the “Deed of Grant” it is clear that the land, the subject matter thereof, was given in 1887 not to James Ocloo alone but to James Ocloo and family. It is admitted that the co-defendant is not a member of that family. According to the evidence of C. H. Chapman, Ocloo I gave a piece of marshy land in 1921 to W. K. Chapman, who reclaimed it in 1925-6 and this was the land in dispute. It results from the Judge’s finding that the land in question belonged to the late W. K. Chapman that he accepted this evidence and we see no reason to differ from the trial Judge on this point.
The action J. A. Hyde v. Chief James Ocloo III started in 1930. The original defendant was Chief James Ocloo I. He was called upon, inter alia, “to come and define his personal property from the estate of which he is caretaker for the family of the late Madam Daleshie”.
Chief James Ocloo I died and W. K. Chapman, who became Chief James Ocloo II, was substituted as defendant on the 16th July, 1931.
W. K. Chapman died and Chief James Ocloo III. was substituted as defendant on the 23rd October, 1933, at the instance of the plaintiff, Judgment was given against Chief James Ocloo III on the 26th February, 1935. There was no judgment against Ocloo I or Ocloo II in respect of the land in dispute.
Ocloo III was the son of Ocloo I. As according to native law and custom property descends through the female line it follows that Ocloo III could not succeed to the properties of Ocloo I. Nor could he for the same reason succeed to the properties of W. K. Chapman alias Ocloo II.
Ocloo III had no interest in the property in dispute and a judgment against him cannot be relied upon by the co-defendant as binding Ocloo II or the plaintiff, his successor, according to native law and custom.
If W. K. Chapman became owner of the property of the land in dispute in 1921 as the plaintiff alleges and apparently as the Judge found, it is clear that no judgment in respect of this land could bind the plaintiff, his heir and successor, except a judgment against W. K. Chapman or the plaintiff, his heir and successor according to native law and custom. There is no such judgment.
The plaintiff succeeded to the property on the death of her son. W. K. Chapman, in 1933. No judgment after that date can have any effect against her title unless she is a party to the action. It is obvious that the judgment against Ocloo III in 1935 cannot be regarded ‘as res judicata so as to estop the plaintiff from maintaining this action.
When the learned trial judge held that the plea of res judicata failed he gave no reason for so holding except that he sustained the contention of plaintiff’s counsel. One of that counsel’s contentions was that the judgment of the Anlo Tribunal was a nullity by reason of the fact that the judgment was given by a set of Councillors all of whom had not sat to hear the evidence. That reason would no doubt have been a good reason for having the judgment set aside on appeal. There was however no appeal. The judgment therefore stands and cannot be treated as a nullity. In our opinion the trial Judge was wrong in holding, as in the reasons for judgment he did, that the judgment of the Tribunal was a nullity.
As regards the other arguments relied upon by plaintiff’s counsel at the trial on the question of res judicata we find they were justified, we are satisfied that the trial Judge was right in holding that the plea of res judicata failed.
We now come to the plaintiff’s contention in this Court that the judgment was against the weight of evidence. Plaintiff’s first witness was C. H. Chapman, the son of W. K. Chapman. He stated that Ocloo I gave the portion in dispute, which was marshy land to W. K. Chapman who reclaimed it in 1925-6. At the trial the co-defendant stated that he did not dispute that W. K. Chapman reclaimed the land and rented portions of it but he said that this was done by him as agent for Ocloo II. It is clear that the Judge did not accept this contention for he expressed himself, in his reasons for judgment, as thoroughly satisfied that the land in dispute belonged to plaintiff’s ancestor. There has been a considerable amount of evidence in this case both oral and documentary. After carefully considering that evidence in the light of the arguments addressed to us by both sides we are satisfied that there was ample evidence justifying the conclusion to which the learned trial Judge came that the land in dispute belonged to the late W. K. Chapman whose successor is the plaintiff.
Having come to this conclusion it is not necessary to consider at length defendant’s contention that the trial Judge was wrong when he declared that the co-defendant was not the proper person to represent the Biana and Daleshie Family as that was never at any moment questioned by the plaintiff in the proceedings. It suffices to say that it was not until the plaintiff had closed his case that leave was granted to co-defendant to amend the writ to show that the co-defendant represented the Riana and Daleshie Family. The same day the co-defendant was cross-examined and admitted that his mother was still alive and on the female side was the head of the Biana and Daleshie Family. In our opinion the trial Judge was right in holding that the co-defendant had not established his right to represent that family.
There is no substance in any of the other grounds of appeal. The appeal is dismissed with costs assessed at £51 16s 6d.
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